1991 (2) KLT 306 - A Land Mark Decision

(By P.S. Vasavan Pillai, Advocate)

Disputes regarding the flow of natural water are too common now-a-days. Peace of the community is often disturbed on account of such controversies over the passage for water. Property owners usually do not allow water from adjacent properties on a higher level to flow on to their lands and consequently quarrels are galore.

In this context the decision in Yesoda v. YusuffHaji (1991 (2) KLT 306) by His Lordship Justice G. Rajasekharan is a landmark one. It fulfils a long-awaited declaration by the apex Court with regard to the right to drain off water on to the adjacent land owned by another. It should put an end to quarrels between adjacent property owners on account of flow of natural water.

While dismissing the petition to up-hold the right to prevent the flow of water from the high-lying adjacent land, the Learned Judge categorically declared, "Every property owner has a natural right of drainage of surface water to the property lying at a lower level... This is a natural right independent of an easement, grant or custom... ...This right of an owner of a land lying on a higher level could be an easement, quasi-easement right as well. Easement of drainage is the right of the owner of one land to cause the water on his land to flow in defined channel on the land of his neighbour. This is also a natural right of the owner of the higher land that the water rising in or falling on his land, shall be allowed by his neighbour owning the lower land to run naturally thereto. The natural right mentioned above is not restricted to natural drainage of water from higher to lower land but includes discharge, of it through a particular route at a specified point. This natural right is a right which can be claimed in respect of water naturally rising in or falling on one's land and not passing in defined channels. The right of an upper proprietor to throw natural water on the lower land is a natural right inherent in property. The lower riparian proprietor has no right to prevent such natural flow or to throw the flow back on to the upper riparian property".

Such decisions which will foster good neighbourly relations and peace and harmony in society are more and more welcome and it is necessary to highlight such decisions especially in the present day turbid atmosphere of the society.

Tax on Expenditure in Air-conditioned Restaurants

(R. Krishna Iyer, B.Com., F.CA, Chartered Accountant)

"The food items in an Air Conditioned Restaurant to cost more.

A Bill was introduced namely 'EXPENDITURE TAX BILL - 1987'in the Finance Act, in 1987. By this Bill a person who pays a rent of Rs.400/- per day in a hotel has to pay byway of expenditure tax on the room rent. This Act was also brought under Direct Taxes Act (Income Tax Act).

The object of collection of tax are two (1) To collect revenue/funds to meet the expenses of the Government (ii) In the socialistic country to reduce the disparity in income between the rich and poor. Countries who have their own resources do not require to collect taxes. In India in both ways, collection of tax is an essential item and source of funds for the Government. In the Budget Speech in 1987 the Finance Minister has quoted more than once the views of late Jawaharlal Nehru. Jawaharlal Nehru while introducing the second five year plan has observed that ‘the country has to lay great stress on equality, on the removal of disparities, and it has to be remembered always that socialism is not the spreading out of poverty'. The Finance Minister while presenting the Budget in 1987 observed that' those who can afford to patronise high class hotels should also be afforded the further pleasure of contributing to the National Exchequer.

The idea of bringing the new legislation is to raise more funds for the Government. Of course this tax is collected only from the person who can afford or have the capacity to pay. Under the Income-tax Act the levy of tax is on income and since this levy is on expenditure a separate enactment has been made. The concept is entirely different, one is on 'income' and other is on 'Expenditure'.

The expenditure tax is charged at a percentage on any chargeable expenditure incurred in a hotel where the room charges for any unit of residential accommodation is Rs.400/- or more per day per individual. The expenditure includes room rent, food or drink facilities or any other services viz. beauty parlour, swimming pool etc. The rate of tax was only 10%in 1987 which got increased to 20% from 1-6-1989. This tax law is effective from 1-11-1987.

The definition of Direct Tax has been amended to include the "Expenditure Tax". In fact this tax is only an indirect tax, like Sales tax and Customs duty, Central Excise etc. The hotel is only an agent collecting the amounts from the customer and remitting to the Government. Taking into account the definition, this is only an 'indirect tax', even though by the amendment in definition, it has been included in the Direct Tax Act. In this context it has to be noted that all the State Governments are collecting tax on the room rent by way of 'luxury tax'. Recently Kerala Government has increased the rate of luxury tax to 15% for rent above Rs.75/- and 20% on Air-Conditioned rooms. Therefore on the same expenditure the State and the Central Governments are collecting taxes.

As per the Income-tax Rules, the expenditure incurred on travelling by an employee including hotel expenses will be restricted to Rs.150/- per day in respect of an employee whose salary is Rs 1,000/- per month or more. For the places Bombay, Calcutta, Delhi the expenditure is restricted to a maximum ofRs.200/-.

Therefore while the Government is collecting tax on expenditure, on the other hand such expenditure actually incurred is not allowed as deduction.

The scope of levy of this tax has been extended in 1991 by the Finance Minister towards expenditure incurred in Air-conditioned restaurants also. According to the Finance Minister this levy is a further measure for discouraging ostentatious and wasteful expenditure. The original proposal was that this levy would be applicable only if the restaurants have any of the three following facilities:-

(1) Air Conditioning

(2) Two or more separate cloak rooms

(3) Telephone

(4) Deep freezing or cold storage facility.

As per the above, this tax can be collected and has to be collected by the person providing the services at the restaurant. The rate of tax is fixed at 15% and will be made applicable from 1-10-1991. Therefore it is not necessary that it must be an Air-conditioned Restaurant, it is sufficient if the remaining three facilities are provided in the restaurants. However it is understood that the said proposal has been amended by which the air-conditioned facility is alone sufficient to attract this levy, irrespective of the availability or not of the other facilities.

In this context it will be appropriate to note that the expenditure tax on rent is applicable for all the expenditure incurred in a hotel. If there is one room costing more than Rs.400/- per day on single occupancy basis, then this tax is payable for all the expenditure incurred in this hotel. On the other hand the tax on restaurant is limited to the expenditure on the air conditioned restaurant only.

Just like luxury tax on room rent collected by Stale Government, the State Governments are also collecting Sales tax on food items. In Kerala the Sales Tax is applicable in 'Star' and 'Bar' Hotels.

The rate of sales tax in Kerala is 6.25%. Therefore in addition to the cost of food, if it is an air-conditioned restaurant in almost all cases the consumer has to pay 6.25% towards sales tax and 15% as expenditure tax.

The Air-conditioning in restaurants cannot be considered as a luxury or wasteful expenditure. In almost all the cities the restaurants which are situated in the heart of the town or in busy centres should have closed halls for restaurants in order to avoid the noise and dust and for privacy and peace. In such circumstances unless it is air-conditioned, it is impossible to sit in the room and for health reasons also. Even the small restaurants in small towns now-a-days are having atleast one air-conditioned room. These Restaurants may not be Income-tax assessees, but this expenditure tax will be applicable to them. As per the Act this expenditure tax is on the expenditure incurred in restaurant. The dictionary meaning of the word restaurant is "a house for the sale of refreshments or an eating house". There is no doubt that the air-conditioned restaurant supplying food and eatables including the ice-cream parlours will come under the purview of the Act. However it has to be examined whether the 'bar' where some eatable is also supplied will be considered as a restaurant for this levy. According to the dictionary meaning of the Bar is "a counter across which drinks are served". Therefore this tax cannot be levied if any eatables are served on the Bar, since the levy is on the expenditure incurred on Restaurants. It is not a case where levy is on food items in an air conditioned room. It is only a tax on the expenditure incurred on the Restaurant.

It is further so be noted that there is no minimum limit for this levy. Even in the Sales Tax Act it is applicable only where the turnover exceeds Rs.2,00,000/- (Two lakhs) per year. The expenditure tax has to be collected on the expenditure incurred on the Restaurant and therefore the said tax has to be paid even on the Sales tax on the food items.

As such this expenditure tax is applicable:

(1) If the rent per day per individual is in excess of Rs.400/- or

(2) If the expenditure is on an air-conditioned restaurant.

Family Courts: an Object Yet to be Obtained

(By T.P. Sudha, Advocate)

After a long hue and cry from various women's organisations and of the recommendation of the Law Commission, the Family Court Act was enacted in 1984 with the object of promoting conciliation and securing speedy settlement of disputes relating to marriage and family affairs and matters connected therewith. The Act was brought to into force in Kerala from 10th October 1989 and Family Courts at Thiruvananthapuram, Ernakulam and Kozhikode were established on 6th June 1992. Later in 1994, Family Courts were established at Kollam and Thrissur districts also.

While some are of the opinion that this is an advancement from the angle of remedial jurisprudence, critics feel that Family Courts which were ushered with great fanfare are withering away. Though, seven years is a short span to evaluate, a brief analysis of the Family Court system in Kerala may help to reach a conclusion.

According to S.3(1)(a) of the Act, the State Government can establish, a Family Court for every area in the State comprising a city or town whose population exceeds one million and for such other areas in the State as it may deem necessary. The establishment of Family Courts on the basis of population was upheld by the Bombay High Court stating that this is a rational and intelligible differentia made to secure the aims and objectives of the Act and hence not violative of Art.14 of the Constitution [1].

In Kerala with a population of about 30 million, this has had the result that there are only five Family Courts. The workload and the disposal rate of the Family Courts at Thiruvananthapuram, Ernakulam and Kozhikode pointed out the inadequacy of only one Family Court at highly populated districts. So the difficulties faced by the litigants in other populated districts where Family Courts are not yet established are apparent.

From the analysis of the Act, it can be seen that it has identified the Family Court Judge as the pivot around whom all the process of conciliation are to be revolved. With regard to the special qualification for the Presiding Officer of Family Court, the Act stipulates:

"Every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriages and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected and preference shall be given to women.[2]

For appointment of Judges, in Kerala, at the present set up, the qualification of years experience at bar or bench is taken into consideration. Other qualification prescribed in the Section has not been seemingly considered for this. When a person who does not have any experience in counselling or conciliatory procedure is appointee he will normally have a tendency to go for adjudication than conciliation. The result i the failure of the very object of the Act itself. It is evident that the litigation under the Act is not normal civil litigation but is to settle disputes of the families through conciliation. The qualifications prescribed are rightly not merely of legal background but expertise in the said field. Hence for attaining the object of the legislator appropriate persons who possess the qualifications prescribed shall be appointed a Judges.

Even though the Act provides for one or more Judges, the State Government has appointed only one Judge for the entire district. Due to this reason enormous delay in the disposal of cases is occurred, which hinders the Court from attaining the objective of speedy disposal.

No Family Court system can succeed unless it has a well organised counselling service available to help parties to reconciliation and to lessen the adversary atmosphere. The counselling system under the Family Court Act, 1984 seems to b comprehensive. As per the Act, the State Government shall in consultation with the High Court, determine the number and categories of Counsellors, required to assist Family Court in the discharge of its functions and provide the Family Court with sue Counsellors, it may think fit.[3]

According to the Family Court Rules, there shall be attached to each Family Court a counselling centre and shall have a principal Counsellor and such number o Counsellors as the Government may in consultation with the High Court determine.[4]

Though the Act and Rules provides for appointment of sufficient Counsellors, in practice, the Courts are neither having sufficient number of counsellors nor a counselling centre is attached to the Court itself. In the present set up the Chief Counsellor is not a permanent officer of the Court. He is an officer of the Social Welfare Department. Since the Chief Counsellor is not available on full time basis, cases are made to be postponed with the convenience of the chief counsellor and thus the cases are delayed and it makes problems to parties also. Individual counsellors who are persons working in the field of social welfare do not attend the Court punctually.

Moreover, what is being dispensed in the Courts today is curative counselling. What is needed is preventive counselling which ought to be given before a relationship breaks down. But that need not be rendered by the Family Court. Voluntary organizations shall set up such counselling centers to the parties in need. So the counselling system in the present family court system needs a revamping in order to strengthen the conciliation process.

The Act makes it obligatory on the part of the Family Court to assist and persuade the parties in arriving at a settlements [5]. For this purpose, the enactment authorizes the Family Court, to follow such procedure as it may deem fit and to adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

Under Section 10 also, the Act gives freedom to the Family Court Judge to apply its own procedure to arrive at a settlement. This apparently is to relieve the Courts from the shackles of procedural technicalities so that they could deal with the matter before them quickly and in a more humane manner. But generally the provisions of Civil Procedure Code, Criminal Procedure Code and Evidence Act are applicable to the Family Courts. So what really happens is that the adversarial system creeps into existence from the back door though the concept of Family Court implies that adversarial procedure will be discarded. So the same delay which is registered when they were tried by a District Judge becomes the bane of the Family Courts also.

In the above perspective, it is imperative to find out the relevancy of legal representation in a Family Court. Legal representation as of right is barred by the Act. [6]The constitutionality of the Section is upheld by the Court in Smt. Lata Pimple v. The Union of India.

This provision appeared to be based on a notion that if lawyers are excluded from the proceedings in matrimonial disputes it can be conducted in a more informal atmosphere. But in the present system, it seems that exclusion of legal representation appears to be undesirable and counterproductive. As already said CPC, Criminal Procedure Code and Evidence Act are applicable to the Family Courts. Similarly the provisions relating to oral evidence, evidence of formal character, procedure for execution of decrees and orders made by the Court etc. show that legal expertise is essential in the matter. It is also pertinent to note that the suits and proceedings are regulated by the personal marriage laws of the parties in dispute. So the knowledge of respective personal marriage law is necessary to contest a case. Hence the denial of legal representation at the trial proceedings will only prove to be unjust and outmoded.

It is known that usually the Judges of the Family Court permit lawyers to participate in proceedings. Practically legal assistance is taken at every stage by the parties and the exclusion of lawyers in the Family Court proceedings remains as a ritual to be circumvented invariably.

Apart from all this, there are some other factors which accelerates the problems in the functioning of Family Courts in the present set up. The insufficiency of infrastructure is the main impediment. For the effective functioning of the system proper facilities should be provided by the Government. Even a Munsiff s Court has got more number of staff than a Family Court. Only four process servers are provided in a Family Court which is inadequate when the workload is considered, while in a Munsiff s Court, there are twelve process servers. Moreover only one Sheristadar is allowed in the Court. Complete administration including the examination of petitions, correspondence, overall supervision etc. is upon him. So it is suggested that as in the Munsiff's Court a Junior Superintendent below Sheristadar may be appointed. At least the facilities and staff provided to a Munsiff s Court should be provided to the Family Court for its effective functioning.

The inaction and non-co-operation of the police is a very important hindrance before the Court to execute the decrees. Especially in the cases of maintenance, notices are never served or replied and execution of warrant is also not properly done. Even in non-bailable warrants the position is not different.

To conclude, it is submitted that though the Family Courts Act as a legislation is a step forward in the process of giving relief to the concerned parties, the family court scenario is crying out for a second look. The anomalies that shroud the courts demand an urgent need for re-evaluation and rectification.

___________________________________________________________________

Foot Notes:

1. Smt. Lata Pimple v. Union of India, AIR 1993 Bom. 255

2. Section 4 (4) of the Family Courts Act, 1984.

3. Section 6 (1) of the Family Courts Act, 1984.

4. Rules 14 and Rule 15 of Family Court (Kerala) Rules, 1989.

5. Section 9. Duty of Family Court to make efforts for settlement-

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade, the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

6. Section 13 - Notwithstanding anything contained in any law no party to a suit or proceeding before a Family Court shall be entitled, as or right to be represented by a legal practitioner : Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

Tax on Sales Tax

(Saju K. Abraham, Chartered Accountant, Ernakulam)

Can tax be levied on sales tax?

Taxation on income, taxation on wealth, taxation of gift, taxation on luxuries, taxation on sales etc. are popular and many of them are universal. But the. question - can tax be levied on amount received under the banner of sales tax is an eyebrow raising subject. It needs meticulous care and consideration before judging this question.

Sales tax on excise duty, Income tax on Sales tax payable, Wealth tax on Income-tax payable etc. have sustained many litigations from its constitutional validity to its mode of implementation. They are tax of one kind levied on tax of another kind. But, when taxing on tax under the same statute becomes a fact, it is unique. Thus, when turnover tax under the Kerala General Sales Tax Act, 1963 is levied on the salts tax collected under the same KG ST. Act, 1963 many eyebrows have been raised. Hence it is a topic for discussion.

Sub-s.(2A) to S.J to the Kerala General Sales Tax Act,1963 introduced by the Kerala Finance Act, 1987 (Act 18 of 1987) with effect from 1-7-1987 has authorised the never tax on the turnover of goods coming under the First or Fifth Schedule to the Act. ft is a tax payable @ 1.5% on the turnover of the above goods notwithstanding anything contained in the Kerala General Sales Tax Act, 1963.

Turnover

As Income-tax is charged on income, wealth tax on wealth and gift tax on gift, the turnover tax is a tax charged on turnover. Turnover is defined in S.2(xxvii) to mean the aggregate amount for which goods are either bought or sold, supplied or distributed by a dealer, either directly or through another, on its own account or on account of others, whether for cash or for deferred payment or other valuable consideration. Thus turnover includes the consideration for which goods are bought. The Supreme Court has taken the view in (12 STC476 (SC)) that in laws dealing with sales tax turnover includes sales tax. In England and the U.S.A. turnover has been held to include the tax. Justice Hidayathulla held that "in calculating the total turnover there is nothing wrong in treating the tax as part of the turnover, because 'turnover' means the amount of money which is turned over in the business (13 STC 98 (SC)). The Supreme Court has observed that in (43 STC13 (SC) "the test is what is the consideration passing from the purchaser tot the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty, sales tax, or freight. The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the same. These decisions and many more, brings us to the conclusion that sales tax collected along with the price of the goods whether shown seperately or not is forming part of the turnover." Justice Lawrence has stated in the case Paprika Ltd. v. Board of Trade (1944) 1 All ER 372 that "whenever a sale attracts purchase tax, that tax presumably affects the price which the seller, who is liable to pay the tax, demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as 'X' plus purchase tax." The Supreme Court has approved the above view and also the statement of Justice Goddard in Love v.Norman Wright (Builders) Ltd. (1944) 1 All ER 618 that "where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether that seller has included tax or not..........So far as the purchaser is concerned, he pays for the goods what the seller demands, namely, the price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover.

In the light of the above, turnover shall mean to include purchase tax, sales tax, excise duty etc; paid by the buyer in consideration of the goods. Thus sub-s.(2A) to S.5 of the Kerala General Sales Tax Act, 1963 provides the levy of turnover in the First and Fifth Schedule computed as above.

Precipitation of tax on computation

The proviso to S.5(2A) of the Kerala General Sales Tax Act. 1963 gives various^ exemptions that shall be reduced from the turnover computed as above for the purpose of fixing the liability of turnover tax. Though many of these exemptions are similar to the exemptions in Rule 9 of the Kerala General Sales Tax Rules, 1963 in determining the taxable turnover for sales tax computation, all those exemptions in Rule 9 are not allowed under the proviso to S.5(2A). Thus the sales tax collected by the dealer and shown separately in the bills is given exemption in rule 9 as clause (e), similar exemption is not provided for the computation of turnover tax. The proviso (1) to S.5(2A) allows deduction of that part of such turnover on which tax is leviable under sub-s.(l) or sub s.(2) of S.5 of the Act. This exemption is limited to the amount of turnover finally determined by the assessing authority for levy of tax under sub-s.(l) or sub-s(2) of S.5 of the Act. Here, in this proviso, the words 'such turnover' is something more than the word 'turnover' in the light of the use of the word 'such', which refers to the turnover of goods coming under the First or Fifth Schedule on which turnover tax is leviable. By the use of this word 'such' in front of the word turnover the meaning of the word turnover used in the section and in the proviso should be identical as discussed above. Thus sales tax, purchase tax etc. forms part of the turnover. But the proviso (1) allows exemption to that part of such turnover on which tax is leviable under sub-s.(l) or sub-s.(2) of S.5 which means the taxable turnover after deduction under Rule 9 of the Kerala General Sales Tax Rules, 1963. When the turnover of goods coming under the First and Fifth Schedule including the sales tax collected is reduced by the turnover of goods in the above schedules on which tax is leviable under sub-s.(l) or sub-s(2) of S.5, the sales tax collected will be precipitated to attract turnover tax. Sometimes, when the turnover includes only taxable turnover on goods coming under First and Fifth Schedule to the Act and if the total turnover exceeds the limit of 50 lakhs, the law builds up a situation to levy turnover tax on the sales tax precipitated only, as above. It is well established that logical has no place in the law. There are many instances where the law defeats logic.

Though the fact in the above circumstance is that, turnover tax is a tax on sales tax, in the legal vision it is purely a tax on the turnover. When the sales tax collected is precipitated as above it is taxed under the banner of turnover tax under S.5(2A) of the Act. The levy of the turnover tax is on the turnover of the goods which include the sales tax collected. It is only the computation of turnover for charging turnover tax that brings forth an amount equal to the sales tax collected or sometimes the aggregate of the sales tax collected and non-taxable turnover of goods coming under the First or Fifth Schedule.

Purchase tax

In the light of the decision cited early the purchase tax paid by buyer also falls within the meaning of the word turnover. Hence the seller will have to include the purchase tax paid by the buyer on goods sold by him in the computation of the turnover for determination of turnover tax. Though such events are rare, levying of turnover tax on the purchase tax cannot be ruled out as unlawful.

Tax on Sales tax

Thus "the tax on Sales tax" is a legal phenomena. It differs from Additional Sales tax and surcharge since the Kerala Additional Sales Tax Act, 1978 and the Kerala Surcharge of Taxes Act, 1957 provides for an increase on the Kerala General Sales Tax by the rates prescribed thereon. Whereas turnover tax is charged on the amount of sales tax collected. Though such amount of sales tax collected is not the sales tax in the legal view, since the collection of sales tax is only collection of an amount equivalent to sales tax payable from the customers permitted by S.22 of the Kerala General Sales Tax Act, 1963. Hence in the pure legal eyes turnover tax on sales tax cannot be considered as tax on tax, but a tax on the amount collected from the customers equivalent to sales tax. Unlike Income tax on Sales tax payable, Wealth tax on Income tax payable, Sales tax on excise duty etc. turnover tax on sales taxis Sales tax on sales tax collected, since turnover tax under S.5(2A) is a branch of the sales tax. This tax on tax is protected by the fact that turnover tax is not levied on sales tax, but it is levied on the turnover which includes sales tax. Hence it is not double taxation. The Article 366 (29A) of the Constitution of India includes tax on the transfer of property in any goods in the definition of the word 'Tax on sale or purchase of goods 'in entry 54 of the list II of the 7th schedule. Hence tax on the turnover, which means consideration for transfer of property in any goods is constitutionally valid. Turnover tax on sales tax collected will appear prima facie as a tax on tax, which is un-ethical and unsocial. But in its deep legal sense it is a pure law in crystal clear. Still some one may ask: can tax be levied on sales tax?

A Comment on Section 17 of the Indian Divorce Act and the Division Bench Decision in 1999 (2) KLT 248

(By Tony George Kannanthanam, Advocate, Kochi)

Section 17 of the Indian Divorce Act says that a decree for dissolution of marriage passed by a District Judge has to be confirmed by a Full Bench of the High Court. This confirmation is applicable only to Christians and so it is arbitrary, discriminatory and violative of Art.13(1), 14and 15(1) of the Constitution of India as far as Christians are concerned. The Indian Divorce Act is an enacted personal law and so it has to comply with Art. 13(1) and Part III of the Constitution. The Indian Divorce Act came into force on 1.4.1869. It extends to India the main provisions of the Matrimonial Causes Act 185 7 and its amendments till 1866. The object of the Act is to place the Indian law on the same footing as the English Law of Divorce. The object of the above section is to enable the Full Bench to review the evidence and come to an independent conclusion by it. The requirements for confirmation was introduced only in India and it has no parallel in the English Law. The present law in England regarding Divorce is the Matrimonial Causes Act 1973. The Christian Community has been demanding for making appropriate changes in the Act for a long time. The Law Commission of India in its Fifteenth report in 1960 on law relating to marriage and divorce among Christians has said on page 40 para.79 that "we see no need for such provision". As per Art.13(1) all pre constitutional laws have to be consistent with Part III of the Constitution and to the extent it is not consistent it is void. S.17 is not consistent with Part III of the Constitution since it violates Arts.14, 15(1), 21 and 25 of the Constitution of India. Since it violates Arts.14, 15(1), 21 and 25 of the Constitution of India it violates Art.13(1) of the Constitution of India.

Since this Section and confirmation is applicable only to Christians it is discriminatory arbitrary, unreasonable, unfair and violative of Art.14 of the Constitution. The classification has not only to be reasonable but that reasonableness should have a nexus with the object sought to be achieved. Classification between Christians and others is not reasonable and the reason for this classification has no nexus with the object sought to be achieved by this classification. In effect this amounts to discrimination on the basis of religion and so is violative of Art.15(1) of the Constitution of India. Intention is immaterial in deciding the Constitutional validity. What matters in deciding the constitutional validity is the effect or consequence of the impugned section on the fundamental rights. The effect of this section is that it violates Art. 14, 15(1), 21 and 25 of the Constitution of India. Minimum six months has to elapse before a case is taken for confirmation before the Full Bench. The Full Bench may remand the case. If it is remanded then it will further lead to much delay. Parties can remarry only 6 months after confirmation. So parties have to wait for a long time and suffer in various ways during this period.

The near and dear ones of the parties are also forced to suffer because of this. This delay and suffering may effect even the looks of parties which will adversely affect their future marriage prospects especially that of females. This delay will adversely affect the right of the parties to start a fresh life. The parties will have to incur various types of expenses due to this confirmation proceedings. All this affects their right to live with dignity and right to decent life and right to life guaranteed under Art.21 of the Constitution of India and so is violative of Art.21 of the Constitution.

The precious time of High Courts are wasted unnecessarily due to this Section. This Section in effect violates the right to freedom of conscience and the right to freely practice religion because on the ground that one is a Christian one has to undergo the hardships, agonies and expenses of confirmation. None of the decisions relied on by the Division Bench in 1992 (2) KLT 248 is applicable. One of the decisions relied on by the Division Bench was AIR 1970 Mad 12. But the question considered in that case was entirely different. The question raised before the Division Bench was not even raised, considered and argued in the Madras case. Another decision relied on by the Division Bench was AIR 1950 Bom.84. That decision is not applicable because that decision did not consider whether enacted personal laws have to comply with Art.13(1).

In the above Bombay case the observation that personal laws will not come under Art.13 was made in reference to the Muslim Polygamy which is not an enacted personal law. The Full Bench of this Court in 1995 (1) KLT 644 had rejected the above Bombay decision and the contention that Indian Divorce Act is a Personal Law and so it will not come under Art.13 by holding that the above contention and Bombay decision will not apply to enacted personal laws. Another decision relied on by the above Division Bench was (1997) 3 SCC 573. That decision is also not applicable. The above decision of the Supreme Court did not specifically consider whether an enacted personal law has to comply with Art.13 and that question was not even argued or raised before the Apex Court. The Supreme Court in the above case was referring to non-enacted personal laws. None of the decisions referred to in the above Supreme Court decision has considered the question whether enacted personal law has to comply with Art.13. One of the decisions referred to in the above decision in AIR 1952 Bom.84 and that shows that the Supreme Court was referring only to non-enacted personal laws.

In the above Supreme Court judgment there is no discussion on the arguments made before it and none of the arguments made before it are mentioned and whether any arguments were at all made supporting the reliefs sought is also not traceable from the judgment.

The view of the Division Bench that this is a personal law and so Court cannot interfere is also not correct because this is an enacted personal law and it has to comply with Art.13 and has to be consistent with Part III of the Constitution, Even according to the Division Bench there is no justification for continuation of this procedure especially since it is applicable only to Christians and so the D.B. directed the State of Kerala to amend the law. When even according to the Division Bench there is no justification for continuation of this procedure especially since it applies only to Christians the D.B. ought to have held it as discriminatory, arbitrary, and vioaitive of Arts.14, 15(1) and 13(1) of the Constitution of India. Holding that there is no justification for continuation of this procedure especially since it applies only to Christians in effect amounts to holding that this procedure is arbitrary, discriminator and violative of Art.14 and 15(1) of the Constitution of India.

How long more the poor victims of this Section have to wait to get rid of this section and get it declared as ultra vires the Constitution and unconstitutional, discriminatory, arbitrary and violative of Arts.13(1), 14, 15(1) and 21 of the Constitution of India.